ORDER NO. 98-344

ENTERED AUG 21 1998

This is an electronic copy. Footnotes will not appear.

BEFORE THE PUBLIC UTILITY COMMISSION

OF OREGON

UA 58

DISPOSITION: MOTION TO DISMISS DENIED; MOTION TO STAY DENIED; IP-ONLY APPLICATION ACCEPTED

On May 1, 1998, Central Lincoln People’s Utility District (CLPUD) filed an application for allocation of exclusively served territory pursuant to ORS 758.435 and OAR 860-025-0020. On May 11, 1998, CLPUD filed a motion for an order staying activity in violation of ORS 758.450(3) and a motion to expedite hearing on its motion for a stay order. International Paper Company (IP) and Douglas Electric Cooperative (Douglas) filed a response opposing CLPUD’s motion for a stay order on May 20, 1998.

On May 27, 1998, the Commission entered Order No. 98-212 denying CLPUD’s motion for a stay of Douglas and IP’s activities. On May 28, 1998, CLPUD filed its first amended application, along with another motion for a stay order and a motion for an expedited hearing on the motion to stay. A prehearing conference was set for June 29, 1998, in this matter and the schedule for responding to CLPUD’s amended application was suspended until after the prehearing conference.

On June 12, 1998, CLPUD filed a second amended application along with a third motion for a stay and a motion to expedite hearing on the motion for a stay order. Also on June 12, Douglas and IP filed a motion to dismiss CLPUD’s application on the ground that CLPUD has not properly invoked the jurisdiction of the Commission. Again on June 12, Douglas and IP filed a response to CLPUD’s second motion for a stay order.

Schedules for the filings in response to CLPUD’s application and its motion to stay and for Douglas and IP’s motion to dismiss were set at the prehearing conference on June 29.

CLPUD has also filed an application to serve only part of the territory it had applied for in its original and two amended applications (the IP-only application). Douglas and IP challenged the legitimacy of allowing CLPUD to have two overlapping applications pending before Commission simultaneously. At the prehearing conference, the parties also agreed to submit memoranda detailing their positions on the IP-only application. In accordance with the schedules set at the prehearing conference, the parties filed replies, responses, and memoranda setting out their positions.

In this order, we deal with CLPUD’s motion to stay, Douglas and IP’s motion to dismiss, and the question of whether the Commission can process the second amended application and the IP-only application at the same time in different dockets. The "application" to which we refer below is the second amended application. The IP-only application is not part of this docket and is therefore not the subject of the motions to stay and to dismiss.

CLPUD’s Motion to Stay. ORS 758.450(3) provides that "during the pendency of an application for an allocation of exclusively served territory, no person other than applicant shall offer, construct or extend utility service in or into the territory applied for." This is the provision that CLPUD invokes in its motion to stay.

In its application, CLPUD claims that it is, and has been since its inception, the exclusive provider of electric utility service within the territory applied for. Douglas and IP dispute that claim. They assert that starting in 1978, Douglas provided electricity to IP to serve its air quality monitoring station. Further, Douglas and IP assert that there is still one customer within CLPUD’s proposed boundaries that Douglas has served since 1989.

By Order No. 98-212 we denied CLPUD’s motion for a stay because we could not determine from the pleadings whether CLPUD was the exclusive provider of electricity in its territory. We said there, at 1-2:

Granting a motion for a stay would not be appropriate when the pleadings allege disputed facts. ORS 758.450(3) applies to territories in which there is monopoly utility service. Other provisions in ORS Chapter 758 apply to territory allocation proceedings when more than one provider provides service. It would be premature for the Commission to grant the motion when the applicability of ORS 758.450(3) to this proceeding is not clear. The issue of exclusivity of service should be resolved at a hearing.

The reasoning above applies to the current application as well. CLPUD’s motion to stay is denied.

Douglas and IP’s Motion to Dismiss. Douglas and IP argue that CLPUD’s application must be dismissed because it is premised on a faulty legal standard. CLPUD’s application contains the following footnote, at 1:

People’s Utility Districts are organized under the provisions of Article XI, Section 12 of the constitution of the State of Oregon and ORS Chapter 261, and it is unclear to Central Lincoln PUD that this application is necessary under the laws of this state. Nevertheless, counsel for Central Lincoln PUD have suggested this application format upon the belief that a review of such allocation is ministerial in nature under prior rulings of the Public Utility Commission and that entry of an order should be ministerially entered pursuant to this application.

In its application and its response to Douglas and IP’s motion to dismiss, CLPUD takes the position that it already has an exclusive service territory. It argues that once the Commission makes a finding that CLPUD serves the territory applied for exclusively, the Commission has no discretion but to approve CLPUD’s application. Therefore, CLPUD argues, the Commission’s jurisdiction is ministerial in nature.

Douglas and IP maintain that such a characterization of the Commission’s jurisdiction fails properly to invoke the Commission’s jurisdiction and should be dismissed. Douglas and IP argue that the allocation of territory creating a monopoly right to serve is not a ministerial action but a significant legal determination that must be undertaken carefully pursuant to the requirements of ORS 758.400 to 758.475, the territory allocation statutes. Those statutes, Douglas and IP note, require that an order from the Commission granting or denying an exclusive allocation of territory be supported by findings of fact. ORS 758.440(1).

We agree with Douglas and IP that our jurisdiction is not ministerial in nature. We are indeed required to make findings of fact before granting or denying an application for allocation of exclusively served territory. However, we do not agree with the conclusion that we cannot process CLPUD’s application because CLPUD believes it already has the right to serve its territory exclusively, or because CLPUD believes that our jurisdiction is merely ministerial (however CLPUD defines that term). CLPUD has submitted a series of applications to us and has thereby made itself subject to our jurisdiction under ORS 758.400 to 758.475. Douglas and IP’s motion to dismiss is denied.

The IP-only application. CLPUD requests that we docket and process the IP-only application separately and consider it on its merits regardless of the outcome of the current docket. Douglas and IP object to the IP-only application because, they argue, it is improper under ORS 758.400 to ORS 758.475 and is procedurally deficient under ORCP §21(A)(3). They conclude that the Commission should not accept the IP-only filing.

Douglas and IP object that the IP-only application is improper because Oregon’s territorial allocation statutes apply to allocation of territory, not allocation of a customer. They contend that IP is the only customer in the territory applied for. CLPUD responds that there are five residential and two commercial customers in the territory. CLPUD’s contention that more than one customer is served by the territory applied for should, if correct, answer Douglas and IP’s concerns. That aside, on the record before us, we see no reason why an application for exclusively served territory must entail a certain number of customers. If CLPUD’s application is formally correct we see no reason why it is improper under ORS 758.400 et seq.

Douglas and IP contend that ORCP 21(A)(3), which mandates dismissal of a complaint if there is another action pending between the same parties for the same cause, governs here. We disagree. While Douglas/IP and CLPUD are involved in both applications, other parties have intervened in UA 58 whose interests are likely not addressed by the IP-only application. Therefore, the applications do not involve the same parties. Moreover, we question whether ORCP 21(A)(3), which addresses duplicative claims, applies to the present case, which deals with overlapping applications for allocation of exclusively served territory. We therefore have discretion as to whether we will process both applications. We have decided to do so.

ORDER

IT IS ORDERED that:

1. CLPUD’s motion to stay is denied.

2. Douglas and IP’s motion to dismiss is denied.

3. CLPUD’s IP-only application will be docketed and processed separately from UA 58.

Made, entered, and effective ________________________.

A party may request rehearing or reconsideration of this order pursuant to ORS 756.561. A request for rehearing or reconsideration must be filed with the Commission within 60 days of the date of service of this order. The request must comply with the requirements in OAR 860-014-0095. A copy of any such request must also be served on each party to the proceeding as provided by OAR 860-013-0070(2). A party may appeal this order to a court pursuant to applicable law.